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TWN Info Service
on Intellectual Property Issues (July08/3)
It was first published in SUNS #6506 dated 30 June 2008 and it is reproduced here with permission. Best Regards WIPO: Patent committee
agrees on issues to re-start discussions
This was seen by observers and many delegates as a step forward in the attempt to break an impasse in the work of the SCP following strong disagreements (on North-South lines) on how or whether to proceed with negotiations on a WIPO substantive patent law treaty (SPLT). Developed countries want to use the SPLT to further harmonise national patent laws. Developing countries are concerned about this and have also proposed many development-oriented and public interest issues to be incorporated in the negotiating agenda. The list agreed to at this meeting is to be used for working towards a work programme for the SCP. It will be open for further discussion (including addition of topics) at the next SCP meeting. Four topics were selected for studies, but it was understood that this did not imply a prioritisation of issues. This was agreed to by the members and contained in a document called "Summary by the Chair", which was "established under the responsibility of the Chair". The SCP also suggested that WIPO organise a conference on the implications of patents on public areas like health, the environment, climate change and food security. The Chair's Summary stated that the SCP "suggested that in the framework of the SCP and, where relevant with other WIPO bodies, the WIPO Director General consider including in the revised Program and Budget for 2009, provision for a Conference on issues relating to the implications, including public policy implications of patents and certain areas of public policy such as health, the environment, climate change or food security". The context within which the conference would take place became a sticking point just before the close of the meeting, threatening to derail the outcome. The Africa Group, The SCP Chair, Maximiliano
Santa Cruz from Gurry, in persuading member states to agree to the Summary, said that the purpose of the Conference was to engage in a dialogue with international organisations and their spheres of competences in a way that will build good cooperation. He said that the second purpose is to understand the issues and to open discussions on those issues, adding that he did not see members changing positions and agreeing to whether discussion should be held in the SCP or in the IGC. Following informal consultations, the language agreed was "in the framework of the SCP and, where relevant with other WIPO bodies". The Chair concluded the debate by saying "having a conference on these issues does not mean they are no longer dealt with by the Committee nor does it mean they are being dealt with by the Committee". The method of work in the Chair's summary was seen by observers as an attempt to bridge the deep divisions between developed and developing countries on the issues which the SCP should work on in its future work. Group B (composed of industrialised countries) wanted to discuss only four issues (grace period, inventive step, novelty and prior art) and work towards harmonising national laws on these issues; while developing countries wanted to also include nine other issues which they considered to be of importance from a developmental and public interest perspective. These issues include disclosure of origin of genetic resources and traditional knowledge, transfer of technology, anti-competitive practices, and flexibilities in the IP system. In the final Chair's summary, the developing countries' issues are included in the list of 18 issues, so also the issue of harmonisation of patentability criteria that was insisted on by developed countries. Interventions by developing countries highlighting in some cases the issue of harmonisation being against the interests of developing countries and in other cases calling for a balance in discussions as well as in Reports prepared by the Secretariat, indicate that many developing countries are concerned that the proposed harmonisation of patent laws and criteria would not be in their interests. Developed countries, on the other hand, are keen to move towards harmonisation of at least some aspects of national patent law in WIPO, and have been attempting to do so through including provisions on these in a new substantive patent law treaty (SPLT). Developing countries like
With this impasse paralysing the SPLT negotiations, the SCP meeting this week was an attempt to re-create the atmosphere and methodology for a future work programme. What this meeting achieved was a list of issues on which future discussions would be based. According to the Chair's summary, "working towards a work programme, the SCP identified a non-exhaustive list of issues for further elaboration and discussions in the future". This non-exhaustive list that is annexed to the Chair's summary contains 18 issues, and according to the summary, it "would remain open for further elaboration and discussion at the next session of the SCP". From this list, four issues were chosen (through informal consultations) for which preliminary studies are to be conducted: "Dissemination of patent information inter alia the issue of a database on search and examination reports; Exceptions from patentable subject matter and limitation to the rights, inter alia research exemption and compulsory licenses; Patents and standards; and client-attorney privilege." According to the Summary, the four issues "are not to be considered prioritised over the other issues contained" in the non-exhaustive list. The Summary also mentions that the WIPO Report prepared for discussion during the SCP week (SCP 12/3) "would remain open for further discussion at the next session of the SCP and be open for written comments to the WIPO Secretariat which would reflect those comments in footnotes or annexes to the document SCP/12/3 by the end of October." The Summary also states that SCP Members "could submit suggestions on the future work programme of the SCP to the Secretariat". The Summary was agreed to following informal consultations and interventions of Member States. On limitations and exceptions,
Several delegations raised questions on what was the objective of identifying the four issues. To this, the Chair responded that the aim was to achieve a work programme. However, he said that if members wanted to state in the Summary that the objective is "harmonisation", he was not going to do that, adding that it would be a mistake to talk about harmonisation and that it is not something done in other WIPO committees. In other committees, the Secretariat prepares reports, surveys, invites experts to make presentations in the meeting and nobody speaks as to whether it will lead to harmonisation, he added. The Chair called on those seeking harmonisation to be "patient". The 18 issues on the non-exhaustive list are: (1) Economic impact of the patent system; (2) Transfer of technology; (3) Competition policy and anti-competitive practices; (4) dissemination of patent information (including registration of licences); (5) Standards and patents; (6) Alternative models for innovation; (7) Harmonisation of basic notions of substantive patentability requirements (prior art, novelty, inventive step, industrial applicability, disclosure); (8) disclosure of inventions; (9) database on search and examination reports; (10) Opposition system; (11) Exception from patentable subject matter; (12) Limitations to rights; (13) Research exemption; (14) Compulsory licenses; (15) Client-attorney privilege; (16) Patents and health (exhaustion [of rights], WTO instruments, patent landscaping); (17) Relationship between patent system and the CBD [Convention on Biological Diversity] (Genetic resources/Traditional knowledge, disclosure of origin); and (18) relation of patents with other public policy issues. +
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